Deoghar v. 1. The State of Jharkhand 2. Dayanand Sharma, S/o- Late Srikant Sharma, R/o- Anand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1295 of 2024 ------ Rajesh Rajpal, aged about 55 years son of Late Mohan Lal Rajpal, resident of Jain Mandir Road, Castair’s Town Deoghar, P.O. & P.S.: - Deoghar, Dist: - Deoghar … Petitioner Versus 1. The State of Jharkhand 2. Dayanand Sharma, S/o- Late Srikant Sharma, R/o- Anand Bihar Block-A, Daburgram, P.O. & P.S.- Jasidih, District- Deoghar … Opposite Parties For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
: Mr. Pran Pranay, Advocate Ms. Kehkashan Afsheen, Advocate : Mr. V.K. Vashistha, Spl.P.P. : Mr. Subrat K. Singh, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash the orders dated 24.02.2023 and 23.06.2023 in connection with Complaint Case No.267 of 2022 passed by the learned Judicial Magistrate, Deoghar whereby and where under the proclamation under Section 82 of the Code of Criminal Procedure and attachment order under Section 83 of the Code of Criminal Procedure have respectively been issued. 3. The brief facts of the case is that on 24.02.2023, the petitioner who was the accused persons of the case was absent in the court, the learned Judicial Magistrate, Deoghar ordered for issuance of the proclamation under Section 82 1 Cr. M.P. No.1295 of 2024 of the Code of Criminal Procedure and on 23.06.2023, the learned Judicial Magistrate, Deoghar ordered for issuance of attachment order under Section 83 of the Code of Criminal Procedure. 4. Learned counsel for the petitioner submits that the proclamation under Section 82 of the Code of Criminal Procedure has been issued vide order dated 24.02.2023 without following due process of law and without recording the satisfaction that the petitioner is absconding or concealing himself to evade his arrest which is a sine qua non for issuing the proclamation under Section 82 of the Code of Criminal Procedure; that too without fixing any time or place for appearance of the petitioner, who is the accused person of the case and without any information available in the record that the proclamation under Section 82 of the Code of Criminal Procedure was ever made, passed the order of attachment of the property of the petitioner under Section 83 of the Code of Criminal Procedure, without mentioning the description of the property to be attached. Hence, it is submitted that the orders dated 24.02.2023 and 23.06.2023 in connection with Complaint Case No.267 of 2022 passed by the learned Judicial Magistrate, Deoghar be quashed and set aside. 5. Learned Spl.P.P. appearing for the State vehemently opposes the prayer for quashing the orders dated 24.02.2023 and 23.06.2023 in connection with Complaint Case No.267 of 2022 passed by the learned Judicial Magistrate, Deoghar and submits that the very fact that the learned Judicial Magistrate, Deoghar has issued the proclamation under Section 82 of Code of Criminal Procedure and the order of attachment under Section 83 of the Code of Criminal Procedure itself shows that there were materials available in the 2 Cr. M.P. No.1295 of 2024 record for the learned Judicial Magistrate, Deoghar to be satisfied that there is justification for issuance of such proclamation and attachment order. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that by now it is a settled principle of law that the court which issues the proclamation under Section 82 of the Code of Criminal Procedure must record its satisfaction that the accused in respect of whom the proclamation under Section 82 of the Code of Criminal Procedure is made, is absconding or concealing himself to evade his arrest and in case the court decides to issue proclamation under Section 82 of the Code of Criminal Procedure, it must mention the time and place for appearance of the petitioner in the order itself by which the proclamation under Section 82 of the Code of Criminal Procedure is issued. As already indicated above since the learned Judicial Magistrate, Deoghar has neither recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest nor mentioned the time and place for appearance of the petitioner hence, this Court has no hesitation in holding that the learned Judicial Magistrate, Deoghar has committed illegality by issuing the said proclamation under Section 82 of the Code of Criminal Procedure without complying with the mandatory requirements of law. Hence, the same is not sustainable in law and continuation of the same will amount to abuse of process of law. Therefore, this is a fit case where the order dated 24.02.2023 3 Cr. M.P. No.1295 of 2024 passed by the learned Judicial Magistrate, Deoghar in connection with Complaint Case No.267 of 2022 be quashed and set aside. 7. Accordingly, the order dated 24.02.2023 passed by the learned Judicial Magistrate, Deoghar in connection with Complaint Case No.267 of 2022 is quashed and set aside. 8. So far as the order dated 23.06.2023 is concerned, it is a settled principle of law that the court which issues the proclamation under Section 83 of the Code of Criminal Procedure may record its satisfaction at any time after issuance of the order of proclamation and order for attachment of the property either movable or immovable or both belonging to the proclaimed person. 9. Now coming to the facts of this case, in the absence of any material in the record to suggest that the proclamation under Section 82 of the Code of Criminal Procedure was in fact made in accordance with law, certainly the learned Judicial Magistrate, Deoghar has committed illegality by passing the order of attachment of the property of the petitioner without mentioning the description of the property to be attached and without recording any reason of the need for passing such order of attachment. 10. Under such circumstance, this Court has no hesitation in holding that the order dated 23.06.2023 passed by the learned Judicial Magistrate, Deoghar in connection with Complaint Case No.267 of 2022 is not in accordance with law and continuation of the same will amount to abuse of process of law and this is a fit case where the order dated 23.06.2023 passed by the learned Judicial Magistrate, Deoghar in connection with Complaint Case No.267 of 2022 be quashed and set aside. 4 Cr. M.P. No.1295 of 2024 11. Accordingly, the order dated 23.06.2023 passed by the learned Judicial Magistrate; Deoghar in connection with Complaint Case No.267 of 2022 is quashed and set aside. 12. The learned Judicial Magistrate, Deoghar may pass a fresh order in accordance with law. 13.
Decision
In the result, this Criminal Miscellaneous Petition is disposed of. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of July, 2024 AFR/ Saroj 5 Cr. M.P. No.1295 of 2024